Page v. Muze, Inc.

Appellate Division of the Supreme Court of New York

Page v. Muze, Inc.

270 A.D.2d 401, 705 N.Y.S.2d 383, 2000 N.Y. App. Div. LEXIS 3041

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 20, 2000

StatusPublished

Cited by15 cases

This text of 270 A.D.2d 401 (Page v. Muze, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Page v. Muze, Inc., 270 A.D.2d 401, 705 N.Y.S.2d 383, 2000 N.Y. App. Div. LEXIS 3041 (N.Y. Ct. App. 2000).

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Opinion

—In an action, inter alia, to recover damages for breach of an oral employment contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Garson, J.), dated March 10, 1999, which, among other things, granted the defendants’ motion for partial summary judgment dismissing the first, second, fourth, and fifth causes of action asserted in the complaint.

Ordered that the order is affirmed, with costs.

The first and second causes of action of the complaint, alleging breach of an oral employment agreement with the defendant Muze, Inc., were properly dismissed as barred by the Statute of Frauds applicable to the sale of securities, which was in effect at the time of the alleged agreement (see, UCC 8-601). The plaintiffs own deposition testimony demonstrated that, at most, during pre-employment negotiations, the individual defendants, officers of Muze, Inc., orally promised him a “piece of Muze”, and that no percentages were discussed. The unsigned confirmatory electronic mail alleged to have been sent by one of the individual defendants months later made only an equivocal reference to the .5% claimed by the plaintiff, and was not shown to have satisfied the subscription requirement of UCC former 8-319 (see also, Parma Tile Mosaic & Marble Co. v Estate of Short, 87 NY2d 524). The second cause of action, alleging that the plaintiff was entitled to a 2% equity interest after two years of employment, was properly dismissed [402]*402for the further reason that the plaintiff resigned before his two-year anniversary.

The fourth and fifth causes of action, alleging fraud by the corporate and individual defendants, were properly dismissed since the facts underlying those claims are duplicative of the facts underlying the two breach of contract claims. All four claims allege, in essence, that the defendants promised to give the plaintiff an equity interest in the company and reneged on that promise. A cause of action to recover damages for fraud may not be maintained when the only fraud alleged relates to a breach of contract (see, Jim Longo, Inc. v Rutigliano, 251 AD2d 547; Alamo Contract Bldrs. v CTF Hotel Co., 242 AD2d 643; Weitz v Smith, 231 AD2d 518).

The plaintiffs remaining contentions are without merit. Bracken, J. P., Ritter, Altman and McGinity, JJ., concur.

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—In an action, inter alia, to recover damages for breach of an oral employment contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Garson, J.), dated March 10, 1999, which, among other things, granted the defendants’ motion for partial summary judgment dismissing the first, second, fourth, and fifth causes of action asserted in the complaint.

Ordered that the order is affirmed, with costs.

The first and second causes of action of the complaint, alleging breach of an oral employment agreement with the defendant Muze, Inc., were properly dismissed as barred by the Statute of Frauds applicable to the sale of securities, which was in effect at the time of the alleged agreement (see, UCC 8-601). The plaintiffs own deposition testimony demonstrated that, at most, during pre-employment negotiations, the individual defendants, officers of Muze, Inc., orally promised him a “piece of Muze”, and that no percentages were discussed. The unsigned confirmatory electronic mail alleged to have been sent by one of the individual defendants months later made only an equivocal reference to the .5% claimed by the plaintiff, and was not shown to have satisfied the subscription requirement of UCC former 8-319 (see also, Parma Tile Mosaic & Marble Co. v Estate of Short, 87 NY2d 524). The second cause of action, alleging that the plaintiff was entitled to a 2% equity interest after two years of employment, was properly dismissed [402]*402for the further reason that the plaintiff resigned before his two-year anniversary.

The fourth and fifth causes of action, alleging fraud by the corporate and individual defendants, were properly dismissed since the facts underlying those claims are duplicative of the facts underlying the two breach of contract claims. All four claims allege, in essence, that the defendants promised to give the plaintiff an equity interest in the company and reneged on that promise. A cause of action to recover damages for fraud may not be maintained when the only fraud alleged relates to a breach of contract (see, Jim Longo, Inc. v Rutigliano, 251 AD2d 547; Alamo Contract Bldrs. v CTF Hotel Co., 242 AD2d 643; Weitz v Smith, 231 AD2d 518).

The plaintiffs remaining contentions are without merit. Bracken, J. P., Ritter, Altman and McGinity, JJ., concur.

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270 A.D.2d 401, 705 N.Y.S.2d 383, 2000 N.Y. App. Div. LEXIS 3041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/page-v-muze-inc-nyappdiv-2000.

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